The Other Health-Care Mandate

The Good Samaritan Upside Down

One might have expected that, after losing the signature religious-liberty case of the past two decades earlier in January with arguments that his own Supreme Court appointees called “extreme,” President Barack Obama would have learned that conscience is something to be taken seriously.

Alas, no. On Jan. 20, in a statement from Health and Human Services Secretary Kathleen Sebelius, the Obama administration announced it would not reconsider its “contraceptive mandate” — that is, the unprecedented command it issued last August forcing all private health plans to cover contraceptive and sterilization services, including drugs that cause early-term abortions.

From the outset, the administration sought to camouflage the mandate’s radical assault on conscience by inserting an exemption for “religious employers” who objected to paying for contraception and abortion. It is a pitifully small fig leaf, however.

An organization cannot qualify if it has a “non-religious” aim (such as caring for the sick or feeding the hungry), or if it hires or serves persons of different faiths. In other words, the administration has managed to legislate a grotesque inversion of the parable of the Good Samaritan: A religious group loses the protection of the law precisely because it reaches across boundaries to help the outsider.

Obama’s contraceptive mandate violates the Constitution in several ways. First, it represents an ugly form of what the courts call a “religious gerrymander.” As the administration knew, most employer-based plans already covered contraceptives, but objecting employers — mostly Catholic — were still free not to offer it. The mandate squashes that freedom by filling the so-called “Catholic gap” in coverage. The Free Exercise Clause does not tolerate such blatant discrimination.

Second, the mandate hijacks the governance of religious organizations. As the Supreme Court dramatically (and unanimously) confirmed earlier in January in Hosanna-Tabor Church v. EEOC, the Constitution forbids government interference in the internal affairs of religious organizations.

That underscores why the mandate is unconstitutional: What could be more intrusive than forcing a religious employer to pay for conduct that violates its own moral code?

Most disturbing, however, is the “religious employer” exemption. The shockingly narrow criteria — modeled on a California law ghost-written by the ACLU — segregate religious organizations into favored and disfavored classes. Who gets the exemption? Organizations that focus inwardly on “religious” matters. Contemplative monks might qualify, provided they do not sell Christmas fruitcakes.

Who doesn’t get the exemption? Organizations that undertake projects such as educating students, treating the sick or feeding the poor. Because these groups leave the cloister, the government now declares their consciences unworthy of protection.

This kind of religious quarantine is patently unconstitutional. The First Amendment forbids the state from picking favorites among religious groups. In their comments protesting the exemption, the U.S. Conference of Catholic Bishops put it well: “In effect, [the administration] is purporting to distinguish between religious denominations and organizations that are, so to speak, insular in their workplace and ministry and those that have a missionary outlook. That is blatantly unconstitutional.”

Animating these measures is a sinister form of “tolerance” that should make religious Americans shudder. It is a cast of mind that relegates the genuinely religious to the margins of polite society. It tolerates countercultural views on sexual morality — provided they are kept safely out of sight.

But there is a world of difference between merely “tolerating” religion and guaranteeing its “free exercise.”

Our Constitution does the latter, embracing the distinctive contributions of religious institutions to civil society. Lamentably, the federal government’s contraceptive mandate takes the opposite approach, acting on the crabbed premise that the rights of conscience are a gift of the state, not of God.

Given the mandate’s multitude of flaws, one might have expected Obama at the very least to expand the religious-employer exemption. After all, this is the president who told Notre Dame graduates in 2009 that we should “honor the conscience of those who disagree with abortion and draft a sensible conscience clause.”

The Jan. 20 announcement revealed how empty that promise was, when Sebelius announced there would be no change to the exemption. Objecting religious employers would merely get “an additional year, until August 2013, to comply with the new law.”

This perverse grace period would, Sebelius soothingly assured, “allow these organizations more time and flexibility to adapt to the law.” It is safe to say that thousands of religious employers do not agree. An additional year — an additional thousand years — will not be sufficient to erode what their consciences tell them about the sacredness of sexuality and human life.

Given the administration’s intransigence, it is becoming increasingly apparent that the contraceptive mandate is headed for its reckoning in federal courts and ultimately in the Supreme Court. When it does, the court should find that it violates our Constitution’s most basic commitment to religious liberty.

Kyle Duncan previously served as the solicitor general of Louisiana.

In January, he joined The Becket Fund for Religious Liberty, which has brought two lawsuits seeking to overturn the contraceptive mandate.

Comments

“headed for its reckoning in federal courts and ultimately in the Supreme Court. When it does, the court should find that it violates our Constitution’s most basic commitment to religious liberty.”

Well, good luck with that. The “wise Latina” unlike most real Latinas, which by definition the misogynist POTUS is stating are unwise, does not even know the joys and love of motherhood. She has had a pretty good life, a fantastic education (which makes you smarter, not wiser). If anything, she should be slipping a little private note to the administration advocating for free insulin, a true life saving drug for which there is no generic available, for all the children with Type 1. Tell me why my child’s insulin is a 35.00 copay, when without any insurance, you can get the pill for about the same? And most BC pills are currently only $5.00 with insurance.

Why the pill, IUDs, day after pills and the like for free? Why? They are so cheap and widely available as it is. I just don’t get this.

Where was I? Oh, yeah, SCOTUS - then there is what’s-her-name that helped write the dastardly Obamacare bill. (I read it way back then, and the wusses in Congress should have, and those that didn’t should be fired for not doing their job – could most people have gotten away with that at work? I don’t think so!)

We need to pray for legislation that destroys O’care long before any single issue at stake here gets to SCOTUS. Or since ole Ginsburg told Egypt our Constitution sucks, maybe we just needed that little reminder, and the people need to demand that their Reps sponsor a constitutional amendment containing concise, clear, in every-day plain english all the things that restrain government, (and throw in a little reminder that the numero uno job of the POTUS is National Defense, not micro-managing every aspect of women’s lives. He needs to butt out. We are smart enough to know where to get them for God’s sake, we don’t need him and his ilk explaining where ‘every little woman on a reservation or in the Latina community’ need to go for such services.) What a sexist, racist person he, and his mostly caucasion and Jewish men pulling the strings are. And if you look at where your “recovery” money is going, a good portion is going to build and expand new ‘women’s health services’ clinics in the Native American and heavily Latino areas. Tell me he isn’t racist.

But a larger reason we need to pass legislation nixing O’care– fast- is because they are coming for the Nurses next. So much eaiser (no pesky congress to deal with) to just write new regs – especially regs that “save money” as it will be cheaper to have nurses perform the vacuum and aspiration abortions than an M.D. (they’ll be busy with all those late-term abortions, especially on those pesky “not-perfect” children, and the system will reward the Dr. when he convinces the Mom to “do the best thing for her child, save it from suffering, and terminate it.”—as that is still saving significant $ by avoiding those pesky labor and delivery, and, NICU costs.

(Aye carumba – how must that make the other children feel? Probable scared to even get sick – “if I m not perfect, mom might really kill me.”)

And how is all this better for Women’s health?

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